(영문) 대법원 2021.1.28.선고 2018도4708 판결

1. A. Determination of whether a “justifiable cause” exists under Article 88(1) of the Military Service Act should take into account not only the purpose and function of the Military Service Act, the location where the performance of the duty of military service has been carried out in the overall legal order including the Constitution, social reality, and changing the times, but also the specific and individual circumstances faced by the Defendant.

The so-called conscientious objection and the so-called conscientious objection according to conscience refers to an act of refusing to perform the duty of military service accompanied by gathering arms or military training on the grounds of a conscientious decision made in a religious, ethical, moral, and philosophical motive or similar motive. uniformly forcing conscientious objectors to perform the duty of military service and imposing sanctions, such as criminal punishment against nonperformance is unreasonable in light of the fundamental rights guarantee system and overall legal order, including the freedom of conscience, as well as in violation of the spirit of free democracy, i.e., tolerance and tolerance for the minority. Therefore, if a conscientious objection is based on a genuine conscience, such conscientious objection ought to be deemed to constitute “justifiable cause” under Article 88(1) of the Military Service Act. In such a case, conscientious objection refers to a conscientious objection that is devout, firm, and sincere. As such, conscientious objection refers to a person’s conscience that may not directly and objectively prove that conscience is based on a genuine conscience by means of proving indirect facts or circumstantial facts relevant to conscience given the nature of things (see Supreme Court en banc Decision 2016Do10912, Nov. 1, 2018).

B. Meanwhile, as Article 15(9)1 of the Reserve Forces Act is prepared to specify the duty of national defense as well as Article 88(1) of the Military Service Act, it is reasonable to interpret “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act in light of the fact that the training of the reserve forces is the performance of the duty of military service accompanied by collective training or military training. Therefore, even in the case of refusal of training of the reserve forces according to genuine conscience, it shall be deemed as constituting “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act. Thus, the fact that there is no justifiable reason is a constituent element for crime, and the prosecutor must prove that there is no fact that has not been embodied in an unspecified period and space. It is similar to proving the absence of a genuine conscience. The proof of the absence of such ambiguous fact is impossible by social norms, while it is more possible to assert and prove the existence thereof, and thus, it should be considered when determining whether a prosecutor bears the burden of proof.

Therefore, the defendant, who asserts his refusal to exercise the reserve forces for conscience reasons, is in accordance with the imminent and specific conscience that his refusal to exercise the reserve forces would be destroyed by the value of existence as a human being if he does not act accordingly, and that his conscience is devout, firm, and sincere, and the prosecutor can prove the non-existence of genuine conscience by impeachmenting the credibility of the materials presented. In this case, the materials presented by the refusal to exercise the reserve forces should be enough to prove that the prosecutor has no justifiable reason based on the materials presented (see the above en banc Decision).

2. The lower court determined that the refusal of the reserve forces training on the grounds of the religious doctrine as a witness by the Defendant does not constitute “justifiable cause” as prescribed by Article 15(9)1 of the Reserve Forces Act, and upheld the first instance judgment convicting the Defendant of the charges in this case.

However, in light of the purport of the above en banc Decision, the lower judgment erred by misapprehending the legal doctrine on “justifiable cause” as stipulated in the Reserve Forces Act, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Therefore, without examining the remaining grounds of appeal by the defendant, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench